• From 19 until 21 September 2018, a delegation of the LIBE Committee visited Warsaw to examine the rule of law situation in Poland. In follow-up to that mission, LIBE Coordinators decided to hold a public hearing with external experts and stakeholders during the LIBE Committee meeting of 20 November 2018 in Brussels.

• Adam Bodnar took part in the public hearing. He spoke about judicial reforms in Poland and the threats to the rule of law.

Speech of the Commissioner for Human Rights Adam Bonar. Public hearing – LIBE COMMITTEE

Dear Mr. Chairman,

Dear Members of the LIBE Committee,

Ladies and Gentlemen,

I would like to thank you for the invitation to participate in the public hearing.

I represent the Office of the Polish Ombudsman, which is the constitutional organ dedicated to safeguard rights and freedoms in the Republic of Poland. Together with 300 staff, my role is to respond to complaints, but also to take care about the general situation concerning protection of human rights in Poland.

I believe that it is the role of the Ombudsman to respond and react when system of protection of human rights in Poland is in danger. Judicial review of legislation, as well as operation of independent courts are crucial to safeguard protection of human rights. I would like to underline that I am in favor or judicial reforms in Poland. Poland needs reforms increasing efficiency of courts.  However, any such reform should respect rule of law standards. The notion of “reform” should not be abused to justify changes affecting judicial independence and division of powers. At the end of the day, real victims of such changes are citizens (including minority groups) and their right to independent court.

The Ombudsman monitors the situation in Poland concerning rule of law. The Ombudsman is also active in monitoring the situation of judges who are subject of political pressure.

In my opinion the most important danger concerning rule of law situation is lack of independent judicial review in Poland. The Constitutional Court, due to various reasons, elaborated extensively in the Venice Commission reports and number of international documents, cannot act independently. As a result, when legislation of highly political nature is adopted, citizens cannot count on independent judicial review.

This situation empowered the Parliament to adopt significant laws that centralized the state power. Those laws included inter alia laws on Prosecutor’s office, laws regulating different  surveillance powers and public media.

Venice Commission has adopted comprehensive recommendations concerning the status of the prosecutor’s office and surveillance powers. They were, however, not implemented at all, despite recommendations and appeals by the civil society.

With respect to public media, the Constitutional Court on 13 December 2016 found that their status violates the Constitution. Nevertheless, this judgment of the Court was never implemented. It should be noted that the pluralistic character of public media is of vital importance in the context of upcoming European Parliament elections. Therefore, there is a clear link with the EU law in this regard.

In my opinion piece for “Politico” in April 2018 I have called on the European Union to undertake legal actions in order to stop the process of dismantling judicial independence. I do believe that the infringement procedure initiated by the European Commission had a decisive importance for the independence of the Supreme Court.

As a result of the preliminary interim measure issued on 19 October 2018, 22 retired judges have come back to work. There is still a doubt whether the EU law, as interpreted by the CJEU, is the sufficient legal ground to adjudicate cases. In my opinion – it is. Nevertheless, for the sake of clarity in the Polish law, there is a need to adopt legislative changes. Such changes, however, should consist of very simple provisions – declaring new retirement provisions as being null and void and confirming that judges of the Supreme Court have a power to adjudicate cases.

But I would like to underline that it is just one of many problems concerning rule of law in Poland. The situation of the Supreme Court is the most symbolic one and the most visible one. But “rule of law” is not only about specific issues concerning retirement age of judges. It is not only about the protection of the highest court in the Republic of Poland. Rule of law is about respect for institutional values that provide a protection against arbitrary power.

In this context, I would like to concentrate on the status of the National Council of Judiciary and on disciplinary proceedings concerning judges.

Amendment of the Act on the National Council of Judiciary provided for a creation of a body, whose judicial members were appointed by 3/5 of the Parliament, and not by peers.

During my public statements in the Parliament I submitted that this new method of selection of the judicial members was contrary to the Polish Constitution and constitutional tradition. It was also the opinion of many scholars and intellectuals, including Professor Adam Strzembosz – a Polish hero, who worked on the model of the Polish judiciary during Round Table talks in 1989.

After the legislative change the process of selection of new judicial members was made in a highly non-transparent manner. Every judicial candidate could be submitted upon recommendation of 25 fellow judges. However, until today – despite motions submitted by the non-governmental organizations, the public opinion do not know who supported those candidates. Due to different actions, including competitions for judicial positions in the Supreme Court – despite measures ordered by the Supreme Administrative Court – there is a growing distrust into the operation of the NCJ. It is one of the reason why the Council was suspended in the ENCJ.

In my opinion, one should not think that as long as the situation with the Supreme Court is somehow resolved due to return of 22 judges, the status of the NCJ should not be subject of attention. The NCJ is a crucial body in judicial appointments. It is also the most important organ safeguarding judicial independence. It is one of the “checks and balances” organs – therefore it should be independent.

There are also serious concerning concerning disciplinary measures against judges.

The new system is construed as follows. Presiding Disciplinary Judge is a judge, who is appointed by the Minister of Justice for fixed term. Presiding Disciplinary Judge may act individually, but also via its deputies, who are also appointed by the Minister of Justice. The first instance is Appeals Court in Warsaw, second is the Disciplinary Chamber of the Supreme Court (except for the Supreme Court judges). One should underline that as a result of changes in the Polish judiciary, the disciplinary chamber in the Supreme Court has been newly created  and packed in with new judges, earning 40% more than regular Supreme Court judges. The Disciplinary Chamber has a special character, within the structure of the Supreme Court, which creates additional controversy.

As the Ombudsman I try to monitor every disciplinary case which is initiated by authorities and which may seem as having a political character. Currently, the Ombudsman is monitoring cases concerning 8 judges. Those cases are still at their explanatory phase. However, their substance is of significant importance for Polish judges and their ability to act.

There were two cases initiated at the explanatory stage for making a preliminary reference to the CJEU. Those cases concerned judges Ewa Maciejewska and Igor Tuleya

Four judges were subject of disciplinary proceedings, at the explanatory stage for commenting in media on the situation concerning Polish judiciary and reforms undertaken by the government. Those judges include: Bartłomiej Przymusiński, Igor Tuleya, Krystian Markiewicz – head of the Iustitia Judicial Association, and Monika Frąckowiak.

I was informed by the Deputy Disciplinary Judge that those judges were asked to make a statement as “witnesses” in the context of explanatory proceedings. Please note that all those judges were officially called to the disciplinary prosecutor in order to be interrogated. Interestingly, on 10 October 2018, attorney Jacek Dubois was refused to participate in the interrogation. He submitted his own case to the Ombudsman.

There is also a case concerning referring to actual political situation in legal grounds to the judgment  concerning politician of the opposition party. This case was initiated against judge Sławomir Jęksa.

Finally, there were explanatory disciplinary proceedings for using the judicial gown and judicial chain during the simulation of the mock trial. Those cases concerned Monika Frąckowiak, Arkadiusz Krupa

There are different proceedings concerning Judge Waldemar Żurek, Regional Court in Krakow, former spokesperson of the National Council of Judiciary. He was moved from the civil appeals division of the Regional Court to first instance division of the Appeals Court despite his lack of consent. His superior is a newly appointed President of the Regional Court in Warsaw, who is at the same time member of the NCJ. There is a risk that this case is of political nature. According to media, judge Żurek initiated his own against the President of the Regional Court, claiming that he is a victim of mobbing practices.

We should draw following conclusions from existing disciplinary cases against judges.

1. Those cases are at explanatory stage. However, their political and legal context of just starting proceedings against selected judges create a risk a “chilling effect” on the operation of judiciary. According to recent poll by “Rzeczpospolita” daily (among 1142 judges) more than 64% of Polish judges claim that the current situation in judiciary may affect their work. 90% of them claims that judicial independence is under threat;
2. No judge should be ever subject to any disciplinary proceedings (even if they are at explanatory stage) for making preliminary references to the CJEU;
3. There is a question whether existence of special, extraordinary disciplinary procedures, with a significant involvement of the executive power, is in compliance with the principle of effective legal protection, as guaranteed by Article 19 of the Treaty. One of the preliminary references concerns this issue.
4. Existence of the Disciplinary Chamber of the Supreme Court, with its distinct character, creates a risk of disciplinary sanctions (including removal) for judges, who are against reforms threatening judicial independence or who issue judgments contrary to political expectations.

To conclude, there are following major points to take into account:

• Possibility to exercise effective judicial review of legislation in Poland;
• Implementation of the Venice Commission recommendations concerning the prosecutor’s office and surveillance actions;
• Implementation of the judgment of the Constitutional Court concerning public media, especially in the context of upcoming European Parliament elections;
• Status of the National Council of Judiciary;
• Monitoring of disciplinary proceedings against judges in Poland.